Connecticut Education Law Bloghttps://www.connecticuteducationlawblog.com
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3232Subscribe with My Yahoo!Subscribe with NewsGatorSubscribe with My AOLSubscribe with BloglinesSubscribe with NetvibesSubscribe with GoogleSubscribe with PageflakesStep away from the microphone: Are school boards able to restrict speech during public comment?http://feeds.lexblog.com/~r/ConnecticutEducationLawBlog/~3/bq2QMOI3sPo/
Wed, 08 Aug 2018 14:47:45 +0000https://www.connecticuteducationlawblog.com/?p=1580Continue Reading…]]>The parent of a student receiving special education services in the Highland Community School District in Iowa had a long history of disagreements with the district regarding the program and services offered to her child pursuant to the child’s Individualized Education Program (“IEP”). See Cazwiell-Sojka v. Highland Community School District, No. 3:17-cv-00020 (S.D. Iowa February 21, 2018). After a breakdown in communication with the teachers and the administration in charge of implementing her child’s IEP, the parent sought to include her grievances as an agenda item during the “receive visitors” portion of the board’s meeting to make known her discontent with the child’s IEP and disapproval of the district’s personnel and their professional performance. The district had a policy which stated that “while constructive criticism was welcomed, the board [desired] to support its employees and their actions to free them from unnecessary, spiteful, or negative criticism and complaints that do not offer advice for improvement or change.” On the basis of this policy, the parent was able to speak about her concerns regarding her child’s education but was cut-off and informed she would not be allowed to “address personnel issues” during public comment. Was the district entitled to do that? The parent did not think so and sued.

Is it a Public Forum?

Speech restrictions imposed by the government on property that it owns are analyzed under a “forum based approach.” See Hotel Employees & Rest. Employees Union v. City of N.Y. Dep’t of Parks & Recreation, 311 F.3d 534, 544 (2d Cir.2002) (internal quotations omitted). Some property is recognized as being traditionally a “public forum” such as a park or a sidewalk where speech can only be restricted if narrowly tailored to serve a compelling State interest, whereas mailboxes at a public school may not be considered such public forums. See Perry Ed. Ass’n. v. Perry Local Educators’ Ass’n., 460 U.S. 37 (1983)( an employee union wanted to place recruitment flyers in teachers’ inboxes but noting that the boxes were built specifically for communicative purposes about official school business by authorized users, the Court found that the boxes were not a “forum” open to general expressive use).

Is it a Designated Public Forum?

Government entities are free to designate a location or time where citizens can express themselves. In a designated public forum—a place not traditionally open to assembly and debate which “the State has opened for use by the public as a place of expressive activity”—government regulation of speech is subject to the same limitations that govern a traditional public forum. See Make the Rd. by Walking, Inc. v. Turner, 378 F.3d 133, 143 (2d Cir.2004). That is the case with public comments during board meetings. Once it is declared to be a “designated public forum,” any regulation on the content of a speaker’s message could be struck down if challenged and deemed unconstitutional. For example, a policy which forbade complaints against an individual employee without the employee’s consent was found unconstitutional because it allowed classic viewpoint discrimination (speakers could provide praise but not criticize employees). See Leventhal v. Vista Unified School District, 973 F.Supp. 951, 954 (S.D. Cal. 1997).

Are Regulations Reasonable and Content Neutral?

The use of the forum can be limited to speech consistent with its purpose and a board may enforce reasonable regulations that are “content neutral,” or applied even-handedly to all speakers. Content-neutral restrictions are those that are both viewpoint and subject matter neutral. See Boos v. Barry, 485 U.S. 312, 320 (1988) (content neutral restrictions do not contain any restrictions based on either the ideology of the message or the topic of the speech, whereas content-based restrictions are those that endeavor to restrict or prohibit speech based on either the viewpoint or subject matter). While a school board cannot differentiate based on a speaker’s opinion, speakers can be limited to subjects relevant to that agency’s purview.See Jones v. Heyman, 888 F.2d 1328, 1332 (11th Cir.1989)( speaker’s admonishing of the commission to act more prudently in its spending habits was not the topic of debate, and the mayor quickly directed the speaker to comment only on the relevant issue or be removed to which the speaker responded “I don’t think you’re big enough,” and was expelled). Similarly, a government body may also remove a speaker who causes a disturbance – shouting, refusing to leave after the expiration of a time limit – without violating the First Amendment. See Conn. Gen. Stat. §1-232 (allowing boards to remove persons who are willfully interrupting a public meeting, clear the room (except for members of the press) and continue in session); see also White v. City of Norwalk, 900 F. 2d 1421 (9th Cir. 1990) (upholding an ordinance that prohibited speech during council meetings that “disrupts, disturbs or otherwise impedes the orderly conduct of the Council meeting”).

What is the Main Take Away?

The parent who sued the Highland School District in Iowa survived a motion to dismiss because the Court in the Southern District of Iowa believed that the school district’s policies denied her the right to speak and petition the government and were unconstitutionally applied to her. Id. at 20.The Court found that the policies supported “constructive criticism” but denied the opportunity to voice “negative criticism”. Id.at 22. The case remains active and proceeding in court. The main take away is that boards of education need to have a clear policy regarding public comments that take into account whether the language or implementation of the policy survives scrutiny under the First Amendment. For example, while board members may consider “asking” or “requesting” that speakers not discuss certain matters, e.g. personnel, it is important to remember that in doing so, they cannot restrict speech content once the meeting has been designated as a public forum. Unless, of course, the speaker is disruptive, e.g. uses profanity or engages in threatening behavior. Another suggestion is to consider limiting the discussion to agenda items and enforcing such practice in a content-neutral fashion.In addition, when dealing with issues that are sensitive in nature such as personnel matters, boards routinely defer discussion to executive session under Conn. Gen. Stat. § 1-225(f). For these reasons, it is also important for board members to be clear on how to effectively use executive sessions to discuss these matters.

]]>https://www.connecticuteducationlawblog.com/2018/08/articles/public-forum/step-away-from-the-microphone-are-school-boards-able-to-restrict-speech-during-public-comment/Landmark Decision Expected to Weaken Public Sector Unions and What You Need to Knowhttp://feeds.lexblog.com/~r/ConnecticutEducationLawBlog/~3/CP8yrlxRUxI/
Thu, 05 Jul 2018 13:17:12 +0000https://www.connecticuteducationlawblog.com/?p=1577Continue Reading…]]>Recently, the U.S. Supreme Court ruled that government workers who choose not to join a union cannot be charged for the cost of collective bargaining and related activities.

In a 5-to-4 decision, a majority of the Court noted in Janus v. AFSCME, Council 31, that “agency fees” violate, “the free speech rights of nonmembers by compelling them to subsidize private speech on matters of substantial public concern.”

As we have reported before, this case stemmed from an Illinois public sector employee who challenged a requirement that government workers who opt out of a union still have to pay partial dues (known as an “agency fee”) to cover the union’s cost of negotiation and other functions associated with policing and enforcing the contract.This decision overrules the Court’s own 41-year-old precedent, which said workers did not have to pay for unions’ political activities but could be required to contribute to other costs of representation, such asnegotiating wages and benefitsand processing grievances. The Court’s decision frees those non-members from having to pay the fees.

Significantly, and what will have an immediate impact on employees and employers is that the Majority held that an employee must affirmatively consent to pay the agency fee: “Unless employees clearly and affirmatively consent before any money is taken from them, this standard cannot be met.” The Court did not specify the form this “affirmative consent” must take, but most likely will be in the form of a signature card explicitly authorizing the withdrawal of agency fees in accordance with Janus.

Employees who elect to be union members and pay the full union dues, as opposed to paying just an agency fee, are not affected directly by this decision. However, the decision could serve to inform all members that paying dues or an agency fee is now optional.

So what are the practical implications for public sector employers? First, you must immediately cease from withholding agency fees from non-union members. Secondly, you can expect your unions to want to meet with all bargaining union members, including those who pay full dues and those who pay just the agency fee, to convince them to remain union members, and to try to get non-members to sign a card affirmatively consenting to withholding agency fees. In addition, you may find that unions will want to either modify or “open” the union dues section of the collective bargaining agreement to strengthen their position, and/or solicit support in signing up agency fee payers.

As we have learned, many public sector unions have already printed up (and in some cases handed out) new authorization cards which may or may not be sufficient under this new enhanced consent requirement. Therefore, it is advisable that before deducting agency fees, to seek proper counsel from experienced labor and employment law attorneys.

]]>https://www.connecticuteducationlawblog.com/2018/07/articles/labor-and-employment/landmark-decision-expected-to-weaken-public-sector-unions-and-what-you-need-to-know/OSEP Issues Policy Guidance Letters Clarifying School District Obligations Related to Mandatory Assessments, Preschool Programming and Record Keepinghttp://feeds.lexblog.com/~r/ConnecticutEducationLawBlog/~3/92sUNfwGaYM/
Wed, 16 May 2018 18:26:38 +0000https://www.connecticuteducationlawblog.com/?p=1569Continue Reading…]]>The United States Department of Education’s Office of Special Education and Rehabilitative Services (OSERS) recently issued several policy guidance letters addressing important issues related to state and districtwide assessments, preschool programming, and disagreements during Planning and Placement Team (PPT) meetings, known under federal law as IEP team meetings.While informal and nonbinding, these concise and digestible policy letters provide useful insight into OSERS’ interpretation of the statutes and regulations prescribing school district obligations related to mandatory assessments, preschool programming, and record keeping.

First, in Letter to Kane (Apr.18, 2018), OSERS addressed the potential obligation of school districts to provide compensatory special education and related services to students with disabilities who may or may not participate in required state or districtwide assessments.Specifically, OSERS was asked to clarify whether school districts are obligated to provide compensatory services to make up for special education and related services missed (1) during the time a student participates in required state or districtwide assessments; and (2) when a parent withholds consent for such assessments and keeps the student home from school while the assessments are being administered.

OSERS recognized the importance of state and districtwide assessments, which are integral aspects of educational accountability systems, and which are used to measure student progress for the purposes of promotion, graduation, and access to educational services.OSERS also highlighted the general requirement that children with disabilities be included in all state and districtwide assessments, while emphasizing that the IEP team will address the manner in which a student participates in such assessments.A Student’s Individualized Education Program (IEP) will, for example, specify whether the student will take alternate assessments, or whether the student will receive any accommodations during such assessments.

Importantly, OSERS clarified that, generally, a special education or related service missed due to participation in required scheduled assessment will not constitute a denial of a Free Appropriate Public Education (FAPE), and the school district will not be required to make up the missed service.Additionally, for a student who is absent from school on testing days due to a parent’s choice, the school district will not be obligated to make other arrangements to make up the missed service.

In Letter to Carroll (Apr. 19, 2018), OSERS addressed whether a school district could unilaterally schedule a full school week of special education and related services for a preschool student, despite knowing from the outset the student would not regularly attend school five days per week.The specific inquiry involved a preschool student whose IEP specified 1,500 minutes of specially designed instruction per week, divided equally between a special education class and a general education class.During the IEP team meeting in which the IEP was developed, no particular schedule was agreed upon, but the parents informed the IEP team that the student would attend the preschool program only three days per week so as to allow for participation in other activities and services outside of the school setting.

Because it was unlikely that the full 1,500 minutes of weekly instruction could be provided in only three school days, the school district inquired whether it could unilaterally implement a schedule after the PPT meeting that provided for less than the 1,500 minutes.OSERS noted that an IEP must identify the specific amount of special education and related services that a student will receive so that the school district’s commitment of resources is clear.OSERS then emphatically stated that, under the IDEA, a school district cannot unilaterally change the amount of services included in a preschool student’s IEP.As such, if the school district wanted to revise the amount of instruction provided for in the student’s IEP, it would have to engage the parents in further discussion, even if such discussion took place outside of a PPT meeting.If the parents and school district agreed to change the student’s IEP, the changes would also have to be memorialized in an amended IEP following appropriate amendment procedures.

The form of the district’s inquiry is somewhat puzzling, since it seems as though the district could have solved the problem by preparing a schedule of services that would comply with the requirements of the IEP, and then simply noting when the parent chose to make the student available for the services that had been scheduled, and when the student was not made available.Nonetheless, if a district wishes to reduce the amount of services available to a student through the IEP, proper procedures need to be followed to either amend the IEP or reconvene the meeting and have further discussions with the parent.

Finally, In Letter to Zirkel (Apr. 19, 2018), OSERS addressed the status of dissenting opinions from IEP team members.Specifically, OSERS was asked whether it is permissible for a teacher or other district member of the IEP team to enter a dissenting opinion on a student’s IEP or elsewhere in the student’s record.An example was provided involving a teacher who objects to the placement of a student in his or her classed based on behavioral and/or academic issues, while the PPT ultimately determines that placement in the teacher’s class is appropriate.

OSERS noted that the Individuals with Disabilities Education Act (IDEA) does not specifically address the issue of disagreements among school team members during IEP team meetings, except in the context of students suspected of having specific learning disabilities.Specifically, 34 C.F.R. § 300.311(b) requires a team member who disagrees with an evaluator’s conclusions regarding a student’s potential learning disability to submit a separate statement reflecting his or her own conclusions.As previously articulated in Letter to Anonymous (Oct. 29, 1996), however, an IEP team is not responsible for implementing the recommendation of an individual team member.

Due to the lack of a definitive authority on the subject, OSERS deferred to state and local educational agencies, which may maintain policies and procedures regarding the documentation of dissenting opinions among school team members during IEP team meetings.Neither the Connecticut General Statues, the implementing Regulations, nor any other State authority addresses the extent to which such dissenting opinions must be documented in a student’s IEP or elsewhere.As such, district personnel should determine whether their board of education maintains any relevant policies or procedures regarding disagreements during PPT meetings.Importantly, however, during certain PPT meetings, such as manifestation determination meetings, the dissenting opinions of team members regarding issues such as whether a student’s behavior constituted a manifestation of his or her disability should be carefully documented in the worksheets memorializing the PPT’s ultimate decisions and recommendations.

The full texts of the OSERS policy guidance letters, as well as additional OSERS resources, are available via the following web link:

As previously stated, policy guidance letters issued by federal and state agencies and their subdivisions, including the OSERS letters discussed herein, are informal, nonbinding, nonbinding, and do not establish a policy or rule that would apply in all circumstances.School district administrators should consult with legal counsel as needed to resolve matters related to special education, including but not limited to state and districtwide assessments, disagreements during PPT meetings, and preschool programming.

Attorneys at Berchem Moses PC are available to consult school districts regarding regular and special education matters in the State of Connecticut.For further information, please contact Attorney

]]>https://www.connecticuteducationlawblog.com/2018/05/articles/special-education/osep-issues-policy-guidance-letters-clarifying-school-district-obligations-related-to-mandatory-assessments-preschool-programming-and-record-keeping/Connecticut State Board of Education Adopts Educational Standards for Expelled Studentshttp://feeds.lexblog.com/~r/ConnecticutEducationLawBlog/~3/KzCZHIJpgYc/
Fri, 23 Feb 2018 18:51:06 +0000https://www.connecticuteducationlawblog.com/?p=1568Continue Reading…]]>The Connecticut State Board of Education (State Board) adopted Standards for Educational Opportunities for Students Who Have been Expelled (Standards) onJanuary 3, 2018. The State Board acted in response to P.A. 17-200, An Act Concerning Education Mandate Relief, containing a directive that the Connecticut State Department of Education (CSDE) adopt such standards. The Standards delineate two permissible options for school districts for the provision of alternative education to expelled students: 1) to educate an eligible expelled student in an alternative educational program operated by the expelling district if placement in such a program is deemed appropriate as adjudged under the CSDE Standards or 2) to provide an eligible expelled student with a different educational opportunity as long as it meets the CSDE Standards.

The Standards clarify that school districts may permissibly educate an expelled student through an alternative education program offered by another local educational agency or operator. Whether a district elects to provide an expelled student with an AEO in an alternate education program or to provide a different alternative educational opportunity, the Standards require that school districts develop an individualized learning plan for each expelled student. Such learning plans must address specified areas including, but not limited to, academic and behavioral goals, bench marks for progress and monitoring of progress.

While acknowledging that many Connecticut school districts offer appropriate educational programming for expelled students, the CSDE expresses an expectation that districts would in most instances determine that enrollment in its own alternative educational program or that operated by another LEA or provider would be the most appropriate option. The CSDE recognizes that in unusual circumstances such placement may not be suitable or available.

The Standards emphasize the importance of providing high quality education to expelled students and require that individualized assessment be conducted. The Standards set specific required action to be taken by districts in five areas: student placement, creation of an individualized learning plan, review of placement, progress monitoring, and transitional planning. The Standards can be reviewed in entirety here:

Notably, the Standards contain no directive for a minimally required number of seat hours for instruction for expelled students. General alternative education programs are subject to state law requirements for the number of required seat hours and school days. However, the omission in the Standards is offset by the CSDE’s expressed preference that districts provide expelled students with an alternative educational opportunity that closely mirrors the full time educational environment from which the expelled student was removed.

The CSDE has expressed interest in developing best practices for reducing discipline, including expulsions, in improving alternative schools and programs, along with improving educational outcomes for expelled students.Futureexamination promises possible further change to or clarification of Connecticut’s existing law and formal guidance in this area.

For the present, school districts are encouraged to review current practices, procedures and policies related to student expulsions, and in particular, those related to the offering or provision of alternative educational opportunities to expelled students to ensure compliance with the latest revisions to C.G. S. 10-233d, Connecticut’s expulsion statute, and with the newly adopted CSDE Standards for the provision of alternative education to expelled students.

]]>https://www.connecticuteducationlawblog.com/2018/02/articles/student-matters/connecticut-state-board-of-education-adopts-educational-standards-for-expelled-students/State Supreme Court Rules That Education Funding Meets Minimum Adequacy Standard; No Equal Protection Violation Against Students from Neediest School Districtshttp://feeds.lexblog.com/~r/ConnecticutEducationLawBlog/~3/5mFxsj7PWVw/
Tue, 23 Jan 2018 15:12:40 +0000https://www.connecticuteducationlawblog.com/?p=1559Continue Reading…]]>On Wednesday, January 17, the Connecticut Supreme Court issued its highly anticipated decision regarding the adequacy of education funding from the State. In Connecticut Coalition for Justice in Education Funding, Inc. v. Rell, 2018 WL 472325 (2018), the court ruled that the State met its obligation to provide “minimally adequate” funding to school districts across Connecticut, and did not deny equal protection to students from the neediest districts. In so ruling, the State’s highest court partially reversed Superior Court Judge Thomas Moukawsher’s September 2016 decision, which held that Connecticut is “defaulting on its constitutional duty to provide adequate public school opportunities because it has no rational, substantial, and verifiable plan to distribute money for education aid.” The decision is the culmination of more than twelve (12) years of litigation dating back to 2005, when CCJEF and a group of representative families first filed suit alleging that inadequate funding violated students’ state constitutional rights to “suitable and substantially equal educational opportunities” and equal protection under the law. The plaintiffs largely represented minority families and others residing in school districts long perceived as underfunded by the combination of State spending and local property taxes. The decision is particularly impactful as Connecticut continues to reel from a deficit of more than $200 million, while also struggling to create and implement an education funding scheme that is both more equitable and predictable to local and regional school districts.

Nearly eight years ago, in a March 2010 plurality opinion, the Connecticut Supreme Court recognized that the State constitution “guarantees Connecticut’s public school students educational standards and resources suitable to participate in democratic institutions, and to prepare them to attain productive employment and otherwise to contribute to the state’s economy, or to progress to higher education.” The court, citing Campaign for Fiscal Equity, Inc. v. State, 86 N.Y.2d 307 (1995), then concluded that the essential components of a minimally adequate education include: (1) minimally adequate physical facilities and classrooms which provide enough light, space, heat, and air to permit children to learn; (2) minimally adequate instrumentalities of learning such as desks, chairs, pencils, and reasonably current textbooks; (3) minimally adequate teaching of reasonably up-to-date basic curricula such as reading, writing, mathematics, science, and social studies; and (4) sufficient personnel adequately trained to teach those subject areas.

The case was sent back to the superior court where, in September 2016, Judge Moukawsher ruled that, despite “anecdotal evidence” of physically deficient facilities, inadequate supplies, and other shortcomings in certain school districts, the plaintiffs ultimately failed to prove that the amount of State education funding was less than minimally adequate. Judge Moukawsher also rejected the plaintiffs’ claim that the distribution of education funding denied equal protection to students from needy school districts, noting, among other things, the significant “tilt” toward increased funding for those same school districts since 2012.

Despite these holdings, however, Judge Moukawsher ultimately ruled that the State still violated the plaintiff students’ right to suitable educational opportunities because its funding scheme was not “rationally, substantially, and verifiably connected to creating educational opportunities for children.” Irrational spending on school construction and special education, as well as arbitrariness in the way educators are “hired, fired, paid, and evaluated,” were cited among other shortfalls in the State’s funding scheme. Judge Moukawsher also highlighted the achievement gap between students in wealth and needy school districts, and called for a new funding formula to deliver State aid according to local need. Judge Moukawsher ordered the State to propose a remedial funding scheme within 180 days, but both the plaintiffs and the State appealed the decision to the State Supreme Court.

By a narrow 4-3 margin, the State Supreme Court affirmed Judge Moukawsher’s findings that the amount of State education funding was minimally adequate under Campaign, and that students from the neediest school districts were not denied equal protection based on the allocation of State funding. The court, however, held that Judge Moukawsher erred in applying the “rational, substantial, and verifiable” standard to the State’s funding scheme. This new standard, the court held, was not supported by prior case law, and resulted in a violation of the “separation of powers” between the courts and the legislature. That is, while it is the proper function of the judiciary to determine whether State is providing minimally adequate funding as articulated in Campaign, “courts simply are not in a position to determine whether schools … would be better off expending scarce additional resources on more teachers, more computers, more technical staff, more meals, more guidance counselors, more healthcare, more English instruction, greater preschool availability, or some other resource.” “Such judgments,” the court emphasized, “are quintessentially legislative in nature.”

The court recognized that the plaintiffs “painted a vivid picture of an imperfect public educational system … that is straining to serve many students who, because their basic needs for, among other things, adequate parenting, financial resources, housing, nutrition and care for their physical and psychological health are not being met, cannot take advantage of the educational opportunities that the state is offering.” At the same time, however, the court reasoned that “[i]t is not the function of the courts … to create educational policy or to attempt by judicial fiat to eliminate all of the societal deficiencies that continue to frustrate the state’s educational efforts. Rather, the function of the courts is to determine whether the narrow and specific criteria for a minimally adequate educational system under our state constitution have been satisfied.”

In a separate opinion partially disagreeing with the majority, Justice Palmer, Robinson, and Sheldon asserted that the Campaign test “requires not only that the state provide the essential components of a minimally adequate education, including facilities, instrumentalities, curricula, and personnel, but also that some reasonable effort be made to ensure that those modalities are designed to address the based educational needs of at-risk learners in underprivileged communities.” Reasoning that the State may have violated one or more components of Campaign based on the aforementioned legal standard, the three dissenting justices recommended sending the case back to the lower court for a new trial.

In an official statement, CCJEF vowed to “pursue all legal remedies” to have the decision “reconsidered and overturned.” Echoing the sentiment of the dissenting justices, CCJEF asserted that a new trial is necessary to clarify “still disputed and unresolved issues,” and added that “a case of this landmark magnitude should not be left dangling on such a close vote.” A motion for reconsideration may be filed within ten (10) days of the receipt of the court’s decision, so local and regional boards of education, school administrators, and other interested parties are advised to keep abreast of important developments in the coming days.

In his own official statement, Connecticut Attorney General George Jepsen hailed the court’s decision, reiterating that the trial court exceeded its authority and that, absent a constitutional deficiency, “education policy decisions rest with the representative branches of government.” At the same time, Attorney General Jepsen recognized that the trial court’s ruling “did identify profound educational challenges that deserve continuing significant and sustained action on the part of our State’s policymakers.” In a similar sentiment, Governor Dannel Malloy emphasized the State’s continuing obligation to “ensure that funding is distributed in a rational manner based on student need, reflecting student poverty and demographic shifts in our communities.” The Governor also reaffirmed that “the urgency to continue the fight to distribute greater educational dollars where there is the greatest need has not diminished.” Absent new developments in the judicial arena, it is now up to the legislature to maintain this urgency and to develop and implement an education funding scheme that delivers on longstanding promises of equity and serves to help school districts close the opportunity gap for Connecticut students.

Attorneys at Berchem Moses PC are available to consult school districts regarding regular and special education matters in the State of Connecticut. For further information, please contact Attorney Michelle Laubin at mlaubin@berchemmoses.com.

]]>https://www.connecticuteducationlawblog.com/2018/01/articles/constitutional-issues/state-supreme-court-rules-that-education-funding-meets-minimum-adequacy-standard-no-equal-protection-violation-against-students-from-neediest-school-districts/Budget Legislation Requires That “Administrative” Contracts Be Provided To And Posted By The Town Clerkhttp://feeds.lexblog.com/~r/ConnecticutEducationLawBlog/~3/IOVEr-6ZlIo/
Tue, 12 Dec 2017 22:00:22 +0000https://www.connecticuteducationlawblog.com/?p=1355Continue Reading…]]>Buried in the nearly 900 page document which is the biennial budget legislation are two sentences that impose a new requirement on boards of education. Specifically, Section 157 of Public Act 17-2 from the June Special Session provides:

Sec. 157. (NEW)(Effective from passage) Any local board of education shall file forthwith a signed copy of any contract for administrative personnel with the town clerk, which town clerk shall post a copy of any such contract on the town’s Internet web site. Any regional board of education shall file a copy of any such contract with the town clerk in each member town, which town clerk shall post a copy of any such contract on the town’s Internet web site.

The term “administrative personnel” is not defined. While this term could be interpreted to include any number of individuals, it most certainly is aimed at posting any written (and signed) contracts for a district’s top administrators, such as the Superintendent, Assistant/Deputy Superintendents, Business Managers, Special Ed Directors, Facility Directors, and similar positions. While it arguably also covers collective bargaining agreements for the school district’s certified administrators, because those already must be filed with the Town Clerk, it is not likely intended to apply to such contracts.

Beyond the above, it is also feasible that the legislation would apply to non-certified “administrative personnel” such as central office personnel, including the Superintendents Secretary, the Personnel/HR Director and IT Personnel. Arguably, the requirement also extends to collective bargaining agreements with any non-certified unions which represent administrative personnel.

Accordingly, until there is further clarification, districts should err on the safe side and consider providing all such documents to the Town Clerk.

]]>https://www.connecticuteducationlawblog.com/2017/12/articles/labor-and-employment/budget-legislation-requires-that-administrative-contracts-be-provided-to-and-posted-by-the-town-clerk/State Supreme Court Holds that Private School had Duty to Warn and Protect Students Against Risk of Serious Insect-Borne Disease When Organizing Trip Abroadhttp://feeds.lexblog.com/~r/ConnecticutEducationLawBlog/~3/_lmFsItLW34/
Wed, 16 Aug 2017 16:48:42 +0000http://www.connecticuteducationlawblog.com/?p=1353Continue Reading…]]>On August 11, 2017, the State of Connecticut Supreme Court delivered its decision in Munn v. Hotchkiss School, SC 19525 (Conn. 2017), holding that the state’s public policy does not preclude imposing a duty on a school to warn about or protect students against the risk of a serious insect-borne disease when organizing a trip abroad. The decision sets an important precedent regarding the extent to which a school may be held liable for injuries sustained by students during school-sponsored programs and activities. Local and regional boards of education, as well as private schools and other educational institutions, are strongly advised to scrutinize their programs and activities in light of the Munn decision.

The facts of the case date back to the summer of 2007, when the Hotchkiss School, one of the state’s most prestigious private boarding schools, organized an educational trip to China. The trip itinerary included a tour of a city in the northeastern part of the country, as well as a visit to a nearby forested mountain. Prior to the trip, school administrators had allegedly visited the Center for Disease Control (CDC) website, which noted the existence of tick-born encephalitis in northeastern China. While insect repellant was listed among the “miscellaneous items” on the school’s suggested packing list, students were never warned about the existence of the disease in the region, nor were they advised to use insect repellant or wear protective clothing prior to visiting the mountain.

The group of students, teachers, and chaperones hiked up the mountain together, and were supposed to descend together via cable car. The student and a few classmates, however, were permitted to descend the mountain on foot. After deviating from the paved pathways, the students became lost, and had to navigate through a heavily forested area before rejoining their group. The student received several insect bites during the descent, and soon developed symptoms of tick-borne encephalitis. The disease caused devastating physical and neurological injuries, including brain damage, loss of speech, impaired motor skills, and difficulty eating and swallowing.

The student’s parents filed a negligence action against the school in federal district court, alleging that the school breached its duty to warn and protect student against the risk of contracting the disease. The jury returned a verdict in favor of the student and awarded her more than $41 million. The school appealed the case to the Second Circuit, arguing that it did not have a duty to warn or protect students against the disease, and that the jury award was excessive. The Second Circuit agreed with the student that there was sufficient evidence for the jury to find that her illness was foreseeable, but asked the State of Connecticut Supreme Court to determine whether the state’s public policy imposed such a duty on the school and whether the jury award was excessive.

The Court answered the Second Circuit’s question in the affirmative, applying four factors to determine whether such a duty existed: (1) the normal expectations of the participants in the activity under review; (2) the policy of encouraging participation in the activity, while weighing the safety of the participants; (3) the avoidance of increased litigation; and (4) the decisions of other jurisdictions. The Court also determined that the jury award was not excessive under the circumstances.

With respect to the first factor, the Court began by recognizing that schools have historically had a duty to exercise reasonable care to protect students from foreseeable harms whenever they act “in the place of a parent” (in loco parentis). This duty exists when students are in school or are otherwise under the school’s control, such as during transportation, school-sponsored athletic events, off-campus picnics, etc. The Court determined that this duty extended to school-sponsored educational trips abroad, and opined that student and parents would normally expect schools to take reasonable measures to warn and protect students from diseases that are present in the areas to be visited. The Court emphasized the difference in information between schools and families when planning for school-sponsored trips, and recognized that schools typically have superior knowledge regarding the areas to be traveled and the associated risks.

With respect to the remaining factors, the Court recognized the importance of promoting international studies and cultural awareness, but disagreed with the school’s contentions that a duty to warn and protect students from diseases during trips abroad would “chill” participation in such trips or result in increased litigation. The Court noted the scarcity of similar claims against schools, and emphasized that schools only have a duty to exercise reasonable care to protect students from foreseeable harms. In other words, the duty to warn and protect does not amount to an absolute guarantee of safety. For a school to be liable for negligence, the risk of unreasonable injury must be foreseeable, constructively or actually known, and preventable if a requisite degree of supervision is exercised. There must also be actual injury, and the school’s breach of its duty must be the cause of such injury.

In the case at hand, the risk of students contracting tick-borne encephalitis had been foreseeable because school administrators had allegedly viewed the CDC website and learned that the disease existed in the northeastern China. The school, however, failed to exercise reasonable care by not warning students of the risk, and not advising or requiring them to use insect repellant or other protective measures during the trip.

Importantly, one of the concurring justices disagreed with the majority’s contention that the school’s alleged knowledge of the existence of the disease in northeastern China made the disease a foreseeable risk. The concurring justice noted that tick-borne encephalitis is an extremely rare disease even in northeastern China, and questioned whether schools should have a duty to warn and protect student against all conceivable risks that attend foreign travel. Such a duty, it was argued, would be oppressive to schools, would lead to increased litigation, and would ultimately detract from the international educational experience. It was recommended that injuries sustained from such remote risks be deemed unforeseeable as a matter of law or, alternatively, that schools be generally immune from lawsuits stemming from study abroad and related programs.

Despite this concurring opinion, the Munn decision should serve as a warning to schools that they may be held liable for injuries sustained by students during school-sponsored programs and activities, even if the precipitating danger appears remote or unlikely. Schools are advised to reevaluate their programs and activities, as well their corresponding policies and procedures, in light of this decision.

The case will now be returned to the Second Circuit, presumably for a final ruling in favor of the student. The Munn decision will be formally published in the August 22, 2017 edition of the Connecticut Law Journal. The full texts of the majority and concurring opinions are currently available through the following web link:

Attorneys at Berchem Moses P.C. are available to consult school districts regarding regular and special education matters in the State of Connecticut. For further information, please contact Attorney Michelle Laubin at mlaubin@berchemmoses.com .

]]>https://www.connecticuteducationlawblog.com/2017/08/articles/state-of-connecticut-supreme-court-decisions/state-supreme-court-holds-that-private-school-had-duty-to-warn-and-protect-students-against-risk-of-serious-insect-borne-disease-when-organizing-trip-abroad/Updated Federal Regulations: Rosa’s Law Changes Section 504 and IDEA References from “Mental Retardation” to “Intellectual Disability”http://feeds.lexblog.com/~r/ConnecticutEducationLawBlog/~3/c3POC8TNv9c/
Fri, 28 Jul 2017 14:37:06 +0000http://www.connecticuteducationlawblog.com/?p=1348Continue Reading…]]>Beginning August 10, 2017, the regulations implementing Section 504 of the Rehabilitation Act of 1973 (“Section 504”), 34 C.F.R. Part 104, and the Individuals with Disabilities Education Act (“the IDEA”), 34 C.F.R. Part 300, will be revised to change references to “mental retardation” to “intellectual disability.” The revisions are being made pursuant to Public Law 111-256, better known as Rosa’s Law. Originally enacted in October 2010, Rosa’s Law is named for Rosa Marcellino, a child with Down Syndrome whose family advocated for more accurate and progressive terminology in legislation affecting individuals with disabilities. The Marcellino family’s efforts are part of a larger trend toward replacing outdated or pejorative legal terms with language that acknowledges the dignity and capabilities of individuals with disabilities.

Section 504 prohibits discrimination against individuals with disabilities by recipients of federal financial assistance, and ensures that children with disabilities have equal access to their education. Rosa’s Law amends the Section 504 regulations in part by changing the definition of “handicapped person.” A handicapped person generally means any person who has a physical or mental impairment which substantially limits one or more major life activities, has a record of such impairment, or is regarded as having such an impairment. The amended definition replaces “mental retardation” with “intellectual disability” as an example of a physical or mental impairment which may render someone an individual with disability entitled to protection under the Act.

The IDEA guarantees a free appropriate public education (“FAPE”) in the form of special education and related services to a child with a disability. Rosa’s Law amends the IDEA regulations in part by changing the definition of “child with a disability.” A child with a disability generally means a child evaluated as having one or more enumerated disabilities and who, by reason thereof, needs special education and related services. The amended definition replaces “mental retardation” with “intellectual disability” as one of the enumerated disabilities that may render a child eligible for special education and related services.

Importantly, Rosa’s Law does not provide a new definition for “intellectual disability” in either Section 504 or the IDEA, nor does it provide any additional rights or eligibility requirements for individuals who have intellectual disabilities.

The full text of the updated federal regulations, as well as a more detailed explanation of Rosa’s Law, is available via the following web link:

The revisions to the federal regulations in accordance with Rosa’s Law are testament to the Department of Education’s responsiveness to public and private advocacy. The Department continues to actively seek input regarding revisions to its implementing regulations. On June 18, 2017, Secretary Betsy DeVos released a statement inviting entities significantly affected by the Department’s regulations, including state and local governments, to provide input on regulations that may be appropriate for repeal, replacement, or modification. Secretary DeVos’ invitation was made in furtherance of the Trump administration’s policy of reducing “unnecessary regulatory burdens,” including those regulations are excessively costly, “outdated, unnecessary, or ineffective.” Local and regional boards of education are encouraged to explore submitting comments for revisions to the Department’s regulations before the August 21, 2017 deadline.

The full text of Secretary DeVos’s invitation, including information regarding the process for submitting comments on existing federal regulations, is available via the following web link:

Attorneys at Berchem, Moses & Devlin, P.C. are available to consult school districts regarding regular and special education matters in the State of Connecticut. For further information, please contact Attorney Michelle Laubin at mlaubin@bmdlaw.com.

]]>https://www.connecticuteducationlawblog.com/2017/07/articles/individuals-with-disabilities-education-act-idea/updated-federal-regulations-rosas-law-changes-section-504-and-idea-references-from-mental-retardation-to-intellectual-disability/Is Your Website Handicap Accessible?http://feeds.lexblog.com/~r/ConnecticutEducationLawBlog/~3/2ZBqoV_h1As/
Tue, 25 Jul 2017 14:43:51 +0000http://www.connecticuteducationlawblog.com/?p=1346Continue Reading…]]>It is illegal for public entities to discriminate against individuals with disabilities. No one disputes this premise. But did you know that if your website does not meet certain standards of accessibility you could be the subject of a complaint and investigation by OCR?

In 2010, the U.S. Department of Education’s Office of Civil Rights issued a “Dear Colleague” letter to colleges and universities letting them know their websites and on-line portals need to be accessible to all students. In May of 2011 that was extended to elementary and secondary institutions as well. Since then OCR has been monitoring website accessibility through its power to enforce Section 504 of the Rehabilitation Act of 1973 and Title II of the ADA.

While there are no regulations as of yet dictating standards, there are generally accepted standards such as those promulgated by the non-profit organization WebAIM based out of Utah State University, that publishes tools and checklists web developers and those responsible for maintaining district websites can use to determine whether your website is in compliance with these standards.

Recently, one of our clients received a notice from OCR that it has commenced an investigation into its website’s accessibility. This is the first such case filed against a Connecticut school district of which we are aware. Before your district is the subject of a complaint, you may wish to consult with your website designer to make certain you are in compliance with the applicable standards so that you can avoid a lengthy and expensive OCR investigation. Feel free also to contact Floyd Dugas (203-882-4110) or Eric Barba (203-882-4178) should you have any questions about these requirements.

]]>https://www.connecticuteducationlawblog.com/2017/07/articles/americans-with-disabilities-act/is-your-website-handicap-accessible/The May 1st Dilemma: Non-Renewal vs. Layoffhttp://feeds.lexblog.com/~r/ConnecticutEducationLawBlog/~3/Ro2GyBEt6T0/
Mon, 03 Apr 2017 13:01:32 +0000http://www.connecticuteducationlawblog.com/?p=1345Continue Reading…]]>Typically this time of year school district administrators ponder whether to “non-renew” non-tenured teachers in response to budget uncertainty, as opposed to waiting for the fiscal picture to become clear and possibly laying off teachers at a later time. Given the state budget crisis, and unprecedented major cuts in funding on the table, the uncertainty is worse this year than ever before. This has caused even superintendents and other administrators who previously were not inclined to non-renew teachers for economic reasons, to give serious consideration to doing so.

So what are the advantages and disadvantages of non-renewal relative to laying off non-tenured teachers? If a teacher is non-renewed for economic reasons pursuant to C.G.S. Section 10-151(c), he/she has no recall rights and no right to a hearing before the Board of Education. Moreover, if after the budget is settled the district decides to continue the employment of some but not all non-renewed teachers, it can pick and choose to whom it decides to offer reinstatement, thereby, enabling it to select the best and brightest.

On the other hand, if a district forgoes non-renewal, and then has to layoff teachers, those teachers will have recall rights under the collective bargaining agreement (typically based on certification and seniority), and have the ability to grieve their layoff if they believe the contract was not followed. While the district loses the ability to pick and choose who it returns to work, this approach has the benefit of allowing the district to wait until the last possible moment before laying off staff, and avoids creating uncertainty and angst for newer teachers who may choose to pursue “greener pastures” once they are non-renewed.